Citation Nr: 0728619
Decision Date: 09/12/07 Archive Date: 09/25/07
DOCKET NO. 05-40 793 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a low
back disability and if so, whether the claim may be granted.
2. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for
bilateral knee disabilities and if so, whether the claim may
be granted.
3. Entitlement to service connection for bilateral hip
disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran served on active duty from December 1959 to
December 1962.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a March 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Albuquerque,
New Mexico. The veteran testified before the undersigned at
hearing held at the RO in April 2007.
The issue of entitlement to service connection for bilateral
hip disabilities is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In a decision dated in May 1996, the Board denied service
connection for a back disability and a bilateral knee
disabilities on the basis that the disabilities were not
present in service and were first medically demonstrated many
years after service discharge.
2. There is evidence added to the record since the May 1996
Board decision that relates to an unestablished fact, and
that evidence, when considered with the evidence previously
of record, raises a reasonable possibility of a
substantiating the claims.
3. Medical evidence relates the veteran's current low back
disability, including degenerative disc disease, and his
current bilateral knee disabilities, including arthritis, to
service, including injury in multiple parachute jumps in
service.
CONCLUSIONS OF LAW
1. Evidence received since the May 1996 Board decision that
denied service connection for a back disability and bilateral
knee disabilities is new and material, and the claims are
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156(a) (2006).
2. Service connection for the veteran's low back disability,
including degenerative disc disease, and his bilateral knee
disabilities, including arthritis, is established.
38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board finds that VA has substantially satisfied the
duties to notify and assist, as required by the Veterans
Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 &
Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2006). To the extent that there may be any
deficiency of notice or assistance, there is no prejudice to
the veteran in proceeding with this appeal given the
favorable nature of the Board's decision. The failure to
provide notice involving the downstream elements of ratings
and effective dates prior to the initial adjudication of the
claims is harmless error in this case and can be corrected by
the RO following the Board's decision. See Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006).
In a decision dated in May 1996, the Board reopened
previously denied claims for service connection for a back
disability and bilateral knee disabilities and denied those
claims on the merits. The veteran did not appeal the Board
decision, and it is final. 38 U.S.C.A. § 7104 (West 2002);
38 C.F.R. § 20.1100 (2006).
On a VA Form 21-4138, Statement in Support of Claim, received
at the Albuquerque RO in October 2004, the veteran stated, in
pertinent part, that he wanted to reopen his claims for
service connection for his back condition and left and right
knee conditions. Thereafter, in a March 2005 rating decision
the RO continued the prior denial of service connection for
back and bilateral knee disabilities on the basis that new
and material evidence had not been received to reopen the
previously denied claims. The veteran filed a notice of
disagreement, the RO issued a statement of the case, and the
veteran thereafter perfected his appeal.
Before the Board may consider the merits of a previously
denied claim, it must conduct an independent review of the
evidence to determine whether new and material evidence has
been submitted sufficient to reopen a prior final decision.
"[T]he Board does not have jurisdiction to consider a claim
which [has been] previously adjudicated unless new and
material evidence is present, and before the Board may reopen
such a claim, it must so find." Barnett v. Brown, 83 F.3d
1380, 1383 (Fed. Cir. 1996). Further, if the Board finds
that new and material evidence has not been submitted, it is
unlawful for the Board to reopen the claim. See McGinnis v.
Brown, 4 Vet. App. 239, 244 (1993).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1131. When a veteran seeks service
connection for a disability, due consideration shall be given
to the supporting evidence in light of the places, types, and
circumstances of service, as evidenced by service records,
the official history of each organization in which the
veteran served, the veteran's military records, and all
pertinent medical and lay evidence. 38 U.S.C.A. § 1154
(West 2002); 38 C.F.R. § 3.303(a). Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
Evidence of record at the time of the May 1996 Board decision
included the veteran's service medical records, which show
the veteran was seen in February 1960 with complaints that
his legs became swollen with walking. Physical examination
was negative. The report of X-rays taken in February 1960
includes a history of pain in the knees for two weeks. The
radiologist said there was no radiographic evidence of
abnormality involving the osseous structure of articular
surfaces of the knees. He said there appeared to be minimal
soft tissue thickening on the left in the infra-patellar
area. In a March 1960 X-ray report, there was noted to be a
clinical history of effusion of both knees and upper tibial
pain. The reporting radiologist stated that X-rays of the
knees at that time were negative. There were no other
pertinent service medical record entries, and the report of
the veteran's service separation examination includes no
complaint, finding, or diagnosis of a back disability or
right or left knee disability.
The veteran's DD Form 214, Armed Forces of the United States
Report of Transfer or Discharge, was of record and shows that
the veteran was a light weapons infantryman and received the
Parachutist Badge.
Other evidence of record included VA medical records dated
from 1974 showing the veteran found to have low back pain
secondary to facet sclerosis at the L5-S1 region; it was
noted that the veteran's only history of back trouble was
in 1962 when he had a parachute injury. Also of record were
VA medical records dated from 1987 showing complaints of
bilateral knee pain for years and 1988 X-rays reportedly
showing early degenerative arthritis with slight bone
sclerosis and osteophytes. Other VA medical records in the
file show continuing low back and bilateral knee problems.
The record also included the reports of VA neurology and VA
orthopedic examinations. At a VA neurology examination in
March 1993, the impression was "non-neurogenic back pain,
attributed to lumboscaral degenerative disc and joint disease
in prior neurology clinic visits . . . ." The physician
said that in the claims file he saw nothing concerning a back
injury or pain until 1974 and concluded the veteran's back
pain was not related to any documented problem while in
service. At a March 1993 VA orthopedic examination, the
physician noted that he had reviews the claims file and that
the veteran had a history of having injured his back in 1962.
The physician stated X-rays of the lumboscaral spine revealed
complete loss of the L5-S1 intervertebral disc space with
advanced degenerative changes in the facet joints at the L5-
S1 level, bilaterally. The diagnosis after clinical
examination was advanced, symptomatic degenerative disc
disease at L5-S1 level with radiculopathy. At a VA
orthopedic examination in July 1993, the same physician
examined the veteran and at that time noted generalized
swelling of both knees. After examination and review of
March 1993 X-rays, the diagnosis was patellofemoral
degenerative arthritis, most severe on the left side. The
physician stated he reviewed the claims file and stated it
was his opinion that this knee problem is service connected.
In a November 1993 addendum to the report of the March 1993
orthopedic examination concerning the veteran's back, the
physician stated that in his opinion the veteran's back
condition is service connected.
The record also included the transcript of a hearing before a
Hearing Officer at the RO in November 1993 at which time the
veteran testified that he had problems with swelling of his
knees early in service and that his knees received cumulative
shocks every time he did a parachute jump. He testified that
he had a total of 30 to 35 parachute jumps in service. In
addition, he testified that he recalled two jumps in which he
hurt his back, one at Fort Campbell, Kentucky, and one in
Turkey in 1962.
In the May 1996 decision, the Board determined that new and
material evidence had been presented to reopen the claims for
service connection for a back disability and bilateral knee
disabilities, which had previously been denied in unappealed
rating decisions. The Board went on to deny the claims on
the merits. Its pertinent finding of fact was that the
veteran's back disability and bilateral knee disability were
not present in service and were first medically demonstrated
many years after service discharge.
Evidence added to the record since the May 1996 Board
decision includes more recent VA medical records showing
continuing complaints of multi-joint pain. In addition,
after the RO last considered the claims, the veteran provided
testimony before the undersigned at the April 2007 hearing.
At that time he testified that he did approximately
35 parachute jumps while he was in service and that he was
injured in those jumps but did not purse treatment in service
because if he did so he understood that he would be taken off
of jump status. He testified about a jump during an exercise
in Turkey when it was windy and he got knocked down and had
injuries when he hit the ground. He testified that during
that jump he was wearing a full equipment pack and at the
hearing had photographs of himself in jump uniform and of
other parachutists at the Turkey jump showing chutes in full
extension out to the side as they came near the ground. The
veteran testified that at the time he had to help other
parachutists clear the area because heavy equipment was being
dropped by parachute but that after that jump, he was always
in pain.
Despite the finality of a prior adverse decision, a claim
will be reopened and the former disposition reviewed if new
and material evidence is presented or secured with respect to
the claim which has been disallowed. See 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156. New evidence means existing evidence not
previously submitted to agency decision makers. Material
evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. New
and material evidence can be neither cumulative nor redundant
of the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156(a). With these considerations, the Board
must now review all of the evidence added to the record since
the May 1996 Board decision that denied service connection
for a back disability and bilateral knee disabilities. At
this stage, the credibility of new evidence is presumed. See
Justus v. Principi, 3 Vet. App. 510, 513 (1992).
In this case, as has been noted above, in its denial of the
veteran's back disability and bilateral knee disability
claims, the Board's finding of fact in its May 1996 decision
was that the veteran's back disability and bilateral knee
disability were not present in service and were first
medically demonstrated many years after service discharge.
The Board stated service connection was not warranted in the
absence of a documented inservice back injury or disability
or other medical evidence establishing that a back disability
or injury was incurred in service. With respect to the
bilateral knee disability claim, the Board said that the
evidence did not show a continuity of symptomatology between
the 1960 inservice complaint of knee pain and swelling and
the first post-service complaint of knee pain in the late
1980s or subsequent treatment and diagnosis related to the
veteran's knees.
On review of the evidence in its entirety, the Board finds
that the April 2007 hearing testimony serves as new and
material evidence to reopen the claims of entitlement to
service connection for a back disability and bilateral knee
disabilities. Although the veteran previously testified that
had back and knee injuries from parachute jumps in service,
the April 2007 testimony is new in that it provides more
specific information about conditions of the jump in Turkey
in service stating that it involved jumping with a full
equipment pack and his specific testimony that in order to
retain his jump status he did not report injuries. He
further testified that following the jump in Turkey he was
always in pain. This evidence was not previously of record
and its new elements are not cumulative or redundant of
evidence previously of record, including the November 1993
hearing testimony.
The April 2007 testimony, which is of course regarded as
credible for purposes of reopening, provides evidence of
circumstances surrounding injuries in service and evidence
continuity of symptomatology since service. This evidence
bears directly and substantially on the issues of service
connection for a back disability and bilateral knee
disabilities and, when considered in conjunction with
evidence previously of record that includes diagnoses of
post-service back and knee disabilities and medical opinions
relating them to service, raises a reasonable possibility of
substantiating the claims. This is because the Board
previously found that inservice back injury had not been
demonstrated and that the evidence did not show a continuity
of symptomatology of knee pain from service. The added
evidence is thus is new and material evidence to reopen the
previously denied claims.
The claims of entitlement to service connection for a back
disability and bilateral knee disabilities having been
reopened, they must be reviewed on a de novo basis. Manio v.
Derwinski, 1 Vet. App. 140 (1991).
As outlined earlier, service connection may be established
for a disability resulting from disease or injury incurred in
or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R.
§ 3.303. Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In order to prevail on the merits on the issue of service
connection, there must be medical evidence of current
disability; medical or, in certain circumstances lay,
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the present
disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.
2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).
In considering the merits of the veteran's claims, the Board
observes that VA medical records dated in the 1990s establish
that the veteran has degenerative disc disease at L5-S1, with
radiculopathy, and patellofemoral degenerative arthritis of
both knees, and later records show continuing treatment for
back and multi-joint pain, thus providing medical evidence of
current disability. The veteran's service medical records do
not document any back or knee injuries in service, but they
do show that the veteran was treated for complaints of leg
swelling and pain in the upper tibial area in early 1960.
The Board finds the veteran's hearing testimony credible, and
he is, of course, competent to testify that he hurt his back
and knees in service and has had pain since then. See Layno
v. Brown, 6 Vet. App. 465, 469-71 (witness competent to
testify to a matter that comes through the use of his senses,
i.e., that which is heard, felt, seen, smelled, or tasted).
It is, in the Board's judgment, understandable that he may
have at one time thought he received back treatment at Fort
Campbell, Kentucky, because the service medical records do
show he had a lumbar puncture at the hospital at Fort
Campbell during hospitalization in January 1961 for
evaluation of headaches with anisocoria.
When the veteran was hospitalized by VA for evaluation of
back pain in January 1974, the veteran reported his only
history of back trouble was in 1962 when he had a parachute
jump injury. The diagnosis in January 1974 was low back pain
secondary to facet sclerosis of L5-S1, and X-rays at that
time revealed sclerotic facet joints. Also, in
September 1977, when the veteran was seen at a VA orthopedic
consultation, it was noted the veteran reported chronic low
back pain for years and that it was first noted after leaving
the paratroopers. As to the knees, in late 1987, when VA
medical records first show complaints related to the
veteran's knees, the veteran felt his bilateral knee pain
stemmed from his service in the paratroopers. These
histories are consistent with the veteran's service record
showing he received the Parachutist Badge and his testimony
that he had back and knee injuries in service, and the Board
therefore finds that the veteran's lay testimony, which it
regards as credible, establishes that he had back and knee
injuries in service.
The Board recognizes that a VA neurologist who examined the
veteran in March 1993 stated he would conclude that the
veteran's back pain was not related to any documented problem
in service, and it is true that the back injury to which the
veteran has testified was not documented in the service
medical records. The Board finds, however, that the medical
opinion provided by the VA orthopedist in November 1993 is of
greater probative value because the orthopedist not only
stated that he reviewed the claims file but also considered
the veteran's history of having been in an airborne division
and having injured his back in 1962. The orthopedist's
opinion that the veteran's back disability is service-
connected provides the medical nexus evidence required to
grant the back disability service connection claim.
At the July 1993 VA examination pertaining to the veteran's
knees, the orthopedist specifically noted that he reviewed
the veteran's claims file, and he noted that the veteran was
in an airborne division and reported he injured his knees
jumping. Based on this, the orthopedist opined that the
veteran's knee problem, bilateral patellofemoral degenerative
arthritis, is service connected. There is no contradictory
medical opinion, and the VA orthopedist's opinion provides
the medical nexus evidence required to grant the bilateral
knee disability service connection claim.
ORDER
Service connection for degenerative disc disease of the
lumbar spine is granted.
Service connection for patellofemoral degenerative arthritis
of the right knee is granted.
Service connection for patellofemoral degenerative arthritis
of the left knee is granted.
REMAND
The remaining claim on appeal is entitlement to service
connection for hip disabilities, and the veteran has
requested a VA examination. VA medical records dated in
May 2004 show the veteran was receiving treatment for chronic
bursitis in both trochanters with bilateral greater
trochanteric bursa injections in August 2004. This shows the
presence of bilateral hip disabilities. The veteran contends
that his current bilateral hip disabilities are related to
injury from his parachute jumping in service. The Board
agrees that the veteran should be provided a VA examination
with a medical opinion related to his claim. See McLendon v.
Nicholson, 20 Vet. App. 79, 83 (2006) citing 146 Cong. Rec.
H9912, H9917 (2000) (statement of Rep. Evans) ("if a
veteran's military records indicate he served as a
paratrooper, making multiple jumps during service in Vietnam
and the veteran now has evidence of arthritis of the knees
that he indicates was due to these jumps, VA will be required
to obtain a medical opinion as to whether it is as likely as
not that this current arthritis is related to his military
service").
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the
claims file VA medical records for the
veteran dated from November 2004 to the
present.
2. Arrange for a VA orthopedic
examination to determine the nature and
etiology of any current bilateral hip
disabilities. All indicated studies
should be performed. After examination
of the veteran and review of the entire
record, the examiner should be
requested to provide an opinion as to
whether it is at least as likely as not
that any current bilateral hip
disability is related to the veteran's
military service, including multiple
parachute jumps in service.
The examiner should provide an
explanation of the rationale for the
opinion and that the claims file was
available for review should be noted in
the examination report.
3. Then, after completion of any
additional development indicated by the
state of the record, readjudicate
entitlement to service connection for
bilateral hip disabilities. If the
benefit sought on appeal remains
denied, issue an appropriate
supplemental statement of the case and
provide the veteran and his
representative an opportunity to
respond.
Thereafter, the case should be returned to the Board if
otherwise in order.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs